Citation Nr: 9809791
Decision Date: 03/30/98 Archive Date: 04/14/98
DOCKET NO. 95-12 610 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to an increased rating for service connected
post-traumatic stress disorder (PTSD), currently evaluated as
30 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joshua S. Blume
INTRODUCTION
The veteran had active military service from January 1968 to
October 1969.
The issue now on appeal to the Board of Veterans’ Appeals
(Board), arises from an August 1993 decision of the Togus,
Maine regional office (RO) of the Department of Veterans
Affairs (VA), which granted service connection for PTSD and
assigned a 30 percent disability evaluation. The veteran
disagreed with the level of disability evaluation assigned in
March 1994, and in the same month, the RO issued him a
statement of the case. In April 1994, he filed a substantive
appeal.
In August 1994, a hearing on appeal was held before a local
hearing officer at the RO. In November 1996, the Board
remanded the matter to the RO for consideration of a change
in the regulations governing the rating of psychiatric
disorders, which had taken effect in that month. The RO was
instructed to schedule the veteran for a psychiatric
examination, if it deemed this to be appropriate, and to rate
his psychiatric disorder according to the “old” or the
“new” rating criteria – whichever of the two it deemed to
redound to the veteran’s comparative advantage. Karnas v.
Derwinski, 1 Vet. App. 308 (1990). This development having
been accomplished, the matter has been returned to the Board
for further appellate consideration.
The Board notes that in April 1997, the RO issued a rating
decision denying entitlement to service connection for a
throat disorder, claimed as secondary to smoking, and that in
December 1997, the RO issued a rating decision denying
entitlement to a total disability rating on account of
unemployability (TDIU). No appeal having been taken from
these decisions, these matters are not in appellate status.
REMAND
The veteran essentially contends that his service connected
PTSD has worsened with time, and that the severity of his
disability warrants a disability rating in excess of the
currently assigned 30 percent.
The Board finds that, while numerous VA PTSD examinations are
associated with the claims folder, the file still does not
contain all of the information necessary to rate the veteran
adequately. This is because the veteran disclosed on several
occasions, most recently on his application for a TDIU rating
filed in June 1997 that he was then receiving ongoing
treatment for his PTSD at the VA mental health center in
Togus, Maine. He also declared on this form that he had had
outpatient treatment at the VA hospital within the past 12
months. Records generated by agencies of VA are considered
to be constructively of record in VA claims for benefits.
Bell v. Derwinski, 2 Vet. App. 611 (1992). Consequently,
these records should be requested from the VA medical center
(VAMC) in Togus, Maine and made an actual part of the file so
that the file may be complete.
Further, it is the responsibility of VA, in any well-grounded
claim for benefits, to obtain ongoing records of treatment,
whether private or public, so that the disability may be
fully assessed. Here, the absence of ongoing treatment
records prejudices the findings of the successive VA
examiners, as they evidently lacked access to these treatment
records. Consequently, once the ongoing treatment records
are obtained, the veteran must be scheduled for another VA
PTSD examination, wherein the examiner has access to all of
the current contents of the claims file, as well as to the
ongoing treatment records. Only then will the veteran have
been afforded due process.
The Board regrets the additional delay imposed by this
REMAND, but the necessity of affording the veteran due
process, and of complying with all extant regulations
governing the processing of claims for benefits, affords it
no other option.
Accordingly, this case is REMANDED to the RO for the
following actions:
1. The RO should obtain copies of all
recent VA and private inpatient and
outpatient psychiatric treatment records
of the veteran, to include any records
available from the VAMC in Togus, Maine,
and should associate all records received
with the claims folder.
2. The veteran should thereafter undergo
a VA psychiatric examination to determine
the current severity of his service-
connected PTSD. The claims folder should
be provided to and reviewed by the
doctor. The RO should also provide the
examiner with a copy of the new
psychiatric rating criteria, which became
effective on November 7, 1996, and the
doctor should report findings that are
responsive to the new criteria. The
examiner should assign a Global
Assessment of Functioning (GAF) score
based upon the veteran’s psychiatric
symptomatology, and the meaning of the
score should be explained.
The examiner should attempt to dissociate
the effects on employability of any non-
service connected disorders, such as
substance abuse, from his service
connected PTSD. If this is not feasible,
the examiner should so state. In any
event, the examiner should comment on the
effects of the veteran’s PTSD on his
employability.
3. After completion of all requested
development, the RO should review and
readjudicate the veteran’s claim for an
increased rating for PTSD and this should
include application of the new rating
criteria which became effective on
November 7, 1996.
If the claim remains denied, the veteran and his
representative should be furnished with a supplemental
statement of the case and afforded an opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate review.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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